Title IV continues to attract debate

Convention's changes to disciplinary canons are part of a long journey

[Episcopal News Service] Episcopal Church canons have expressed concern about clergy behavior since the General Convention in 1789 made it wrong for clergy — except “for their honest necessities” — to “resort to taverns, or other places most liable to be abused to licentiousness.”

That original Canon 13 also warned that clergy who “[gave] themselves to base or servile labor, or to drinking or riot, or to spending their time idly” would face a range of disciplinary actions.

The church ever since has been refining its answer to the question of how best to discipline errant clergy. The tradition continued at the recent 77th meeting of General Convention when bishops and deputies tweaked the current version of the Title IV disciplinary canons that have been in use for just more than a year. And there could well be more changes to come.

The 2012 adjustments, accomplished via Resolution A033, primarily involved clarification of certain definitions, as well refining and clarifying parts of the process.

However, the bishops and deputies meeting in July 5-12 in Indianapolis also told the church’s Standing Commission on Constitution and Canons to undertake a comprehensive review over the next three years of Title IV’s implementation. Resolution C049, proposed by the Diocese of Albany, directs the standing commission to determine “the extent to which the elements of safety, truth-telling, healing, and reconciliation are being effected” as first intended by the 2006 resolution (2006-A153), which authorized the work that resulted in the current iteration.

Convention also agreed with the Diocese of Central Florida’s request (in Resolution C116) to have Constitution and Canons review the constitutionality of two provisions of Title IV. One gives the presiding bishop authority to restrict the ministry of a diocesan bishop for an alleged offense without the consent of the diocese’s standing committee or, in the case of alleged abandonment, without the consent of the church’s three senior bishops as was required in the prior version of Title IV.

The other involves Title IV’s perceived violation of Article IX in the church’s Constitution, which says priests and deacons “shall be tried by a Court instituted by the Convention of the Diocese.” Some dioceses, including Central Florida, have questioned whether General Convention can prescribe a church-wide system for disciplining diocesan clergy because they contend Article IX allocates that authority to the dioceses. Such a church-wide system has existed since at least 1994.

The drafters of the current version of Title IV, which went into effect July 1, 2011, always anticipated the need for changes.

“You can’t institute the scope of the changes to the new Title IV without tweaks that need to be worked out,” Diane Sammons, chancellor of the Diocese of Newark, who just completed a six-year term on the Constitution and Canons commission (the last three as chair), said during a recent interview with ENS. “Everybody on the [commission] understood that and everybody that’s worked with Title IV understands that there’s not going to be perfection in the first draft of it and that we’re going to have to continue to live and breathe it and make changes while staying, hopefully, loyal to the concepts of it and the theology behind it.”

Steve Hutchinson, Diocese of Utah chancellor who chaired of the House of Deputies’ legislative committee on canons during convention, agreed, adding that “we know we probably didn’t get them all and there’ll be a few more, and maybe some that nobody’s thought yet” — that refinements, but “not big sweeping changes of direction or philosophy,” were anticipated.

Sammons added that maintaining a balance between perfecting the canons while remaining true to their new spirit is “going to be the challenge.”

Part of the challenge comes because at least some Episcopalians dislike the revised Title IV.

Some objections to the revised Title IV

“Procedurally it’s a disaster. In terms of what it’s done to clergy rights it’s more than a disaster,” Diocese of Newark Alternate Deputy Michael Rehill told ENS. “It needed basic total revision. It was adopted hastily without anybody apparently having any thought about how it was actually going to work in some respects.”

In other ways, Rehill, insists, the drafters knew exactly what they were doing. He says their intent was to take away “all the rights of clergy” and give “incredible power to bishops to get rid of priests.”

Rehill, a former Diocese of Newark chancellor, is the chief operating officer of Canon Lawyer, which defends Episcopal clergy in disciplinary matters.

And, the Rev. Canon Christopher Seitz, the Rev. Dr. Philip Turner, the Rev. Dr. Ephraim Radner and attorney Mark McCall, writing for the Anglican Communion Institute, have consistently opposed the revised Title IV and some of its applications. In October 2011 they called Title IV “a bad canon being implemented badly.” They called for its repeal and a return the previous version, which they said “provides adequate due process for those charged, does not expand unconstitutionally the powers of the Presiding Bishop, and not least is understood by those charged with administering it.”

The four men’s summary of objections points to the crux of the Title IV dispute. Their first concern is related to the theological shift in the revision, the second deals speaks to the change in discipline of bishops and the latter might be credited to the fact that the church is still learning how to implement the new Title IV.

Shortly after the four first voiced their objections, Hutchinson joined Duncan Bayne, Diocese of Olympia vice chancellor, and Joseph Delafield, Diocese of Maine chancellor, to publish a paper they said “conclusively establishes the constitutionality” of Title IV.

How the church got to the new Title IV

The concern about due process expressed by the institute writers, Rehill and others is the fruit of major changes in philosophy and approach reflected in the revised Title IV. The seed for change dates to at least 2000 when General Convention called for a task force to assess the way the church disciplined clergy via Title IV and other methods.

At that time the then-current version of Title IV had been in use for just four years, General Convention having approved in 1994, and implemented two years later, a system based on the U.S. Armed Forces’ code of military justice (current version here). The 1994-96 version of Title IV stemmed from a wave of Episcopal clergy sexual misconduct cases that dated to at least 1986.

That version of Title IV aimed to give clarity and uniformity (including a uniform court system) to disciplinary processes that in large part had been left up to individual dioceses, ENS reported in a Sept. 1994 press release. The churchwide canons, unchanged since their creation in 1915, were intended to deal primarily with issues of heresy and doctrine, ENS reported.

Until the 1970s, cases of clergy misconduct were usually handled privately by the bishops and those clergy accused of misconduct, Robert Royce, former chancellor of the Diocese of Long Island and the principal author of the SCCC’s resolution, told ENS at the time.

Sammons noted during her interview with ENS that the Episcopal Church was applauded in 1994 “because it came up with a disciplinary system that was no-nonsense. And that was a critical thing at that time. That gave us credibility. It gave us a system that supported victims, especially women, coming forward in a way that other churches and institutions still haven’t done” for either women or children.

However, by 2000, Title IV was being criticized because it was perceived as “overly militaristic and rigid in its application” and that it “lacked a theological foundation.” Thus, convention called for a review of Title IV.

Paying attention to the theology of discipline

In the Task Force on Disciplinary Policy and Procedure’s report to the 2003 meeting of convention, the members wondered how the church’s mission of the reconciliation of people to God and each other in Christ could be interpreted in the canons to “include that essential note and still hold offenders accountable in meaningful ways.” The task force concluded that the church needed to “begin anew with Title IV” because it would “not be possible to accomplish what we hope for ourselves by making even major adjustments to Title IV as it presently exists.”

It commissioned an essay, “Some Thoughts Toward Canon Revision: Canons as Gift of Grace and Dance of Love” (found in the task force’s 2003 Blue Book report) by the Rev. Pamela Cooper-White. The task force called it a “catalyst for further conversation in the church on the theology of discipline.” Cooper-White, an Episcopal priest who now teaches at Columbia Theological Seminary in Decatur, Georgia, suggested that canon law is “a God-given expression of care for the ordering of the church that is grounded not merely in restraint of evil (as often is the case in secular law), but focused on creating a community in which every member is supported in living a life grounded in desire for God, and the joy of being in harmony with the original goodness of God’s creation.”

The task force asked for, and received, the authority to continue its work in the 2003-2006 triennium, but warned that it might not be able to accomplish the sweeping changes it was contemplating within those three years.

In fact, the task force proposed to the 2006 convention a completely revised Title IV which its chair, Diocese of Indianapolis Bishop Catherine Waynick, said at the time “reclaim[ed] the broader meaning of discipline as the developing of habits which can form all members of the Church in healthy and responsible ministries and which can produce reconciliation and healing when failures occur.”

The proposed revision turned Title IV away from the criminal-justice model and towards one that was based on disciplinary systems used in other professions, such as doctors, lawyers and licensed social workers. The latter models are characterized by an obligation on the part of the professional to cooperate with investigations. Thus, for instance, they cannot refuse to testify in disciplinary proceedings by attempting to invoke the secular law right against self-incrimination.

General Convention balked at the task force’s proposal to make certain lay leaders subject to Title IV. Others thought the new processes were too complicated, especially for smaller dioceses.

But convention decided to keep trying. It passed Resolution A153 to create a new task force, and gave it a list of “critical goals, concerns, and values,” including moving Title IV “towards a reconciliation model for all appropriate circumstances,” encouraging early resolution of conflicts and reconciliation of the persons “at the earliest appropriate time and the lowest appropriate level of the church.” Any new proposal was meant to also “maintain the historic pastoral role and canonical authority of bishops” and respect the “roles, rights, and integrity” of people subject to Title IV and of “injured persons, communities, parishes, missions, congregations, and the church.”

In 2009, convention adopted the current version of Title IV, which bases itself, according to its first canon, on the premise that “the Church and each Diocese shall support their members in their life in Christ and seek to resolve conflicts by promoting healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation among all involved or affected.”

The laity is not subject to the disciplinary process it outlines, but the revision codified the 2006 plan to take clergy discipline out of a criminal-justice model.

Rehill told ENS that in 2009, “the clergy at General Convention could not have possibly understood what they were actually doing.” He said that the revision was quickly approved “when the convention’s attention was focused on the Anglican Communion and the issues of human sexuality.”

The revision “just raced through being marketed as taking ‘legalism’ out of the disciplinary process and making it pastoral rather than legalistic,” he said, adding that “there’s nothing pastoral at all in the new Title IV.”

Others, including Hutchinson and Sammons, say that the nine-year process of revising Title IV included soliciting input from laity and clergy. Hutchinson said that, especially since 2008, the constitution and canons committee, and other groups, “have provided numerous opportunities and request for input, criticisms, suggestions and so forth all across the church for people to weigh in on anything they thought could be improved or was wrong, or anything about Title IV, and we never heard from [Rehill].”

A change in approach

Hutchinson, who has been involved in Title IV revisions since at least 1994 and who is “admittedly pretty invested in the pursuit of something that we think would better serve the legitimate interests of the church,” says the current version speaks “ultimately what are we about as an enterprise, what do we stand for and what kind of systems, processes and theological constructs do we have that reflect those interests.”

Sammons said the current version balances aspects of a professional-conduct model “with a heavy dose of trying to administer at every step of the process a sense of pastoral care and theology.”

She told ENS that, despite objections about a loss of due process, clergy will benefit from the new procedures. While they no longer have the “criminal rights” afforded them under the old Title IV, they and the people they may have injured also are not subjected to an adversarial process from the very beginning.

“You do not want to discourage people who are really victims from having a prompt and just resolution of their problem,” she said. “But it’s really designed to see if there’s a way to work it out first through communication without a punitive process, and that’s the benefit to the clergy.”

And the complaint that clergy have lost rights, Hutchinson notes, is based on a series of privileges afforded to clergy only for the last 16 years since the 1994 revision went into effect in 1996. Yet, Sammons acknowledged, “if you have a right, you want to be able to stand on it, and you want more rights. You don’t want them taken away. It’s just not intuitively natural for people to want to give up rights, even if they are receiving something perhaps more beneficial in return.”

The basis of the efforts to revise the church’s approach to clergy discipline that began in 2000, Sammons said, was “that notion that we live in community and therefore we’re all responsible to each other, and part of our Christian responsibility is to be reconciled at the same time.”

The current Title IV, she said, carries with it assumption that reconciliation and healing “should be always a part of our disciplinary code.”

“So it shouldn’t just be uncovering the harm,” she said. “It should also be restoring people back to community, and that includes the clergy, and our system had never focused on that.”

Living into new Title IV has had some bumps, both Hutchinson and Sammons acknowledge.

“There have been unfortunately a small number of cases that have gotten out of control because [of] respondents or counsel for respondents in particular not wanting to play by the new rules and the people in the disciplinary system not realizing that they have the authority to control and manage the timing and expense elements of the process more than they have been doing,” Hutchinson said.

And, because the focus has not been on reconciliation and restoration, he said Title IV is “still going to be a work in progress as we go forward and we continue to understand relationships within the church and discipline, but also what does it mean to be a reconciling forum for people who have had some very serious problems or hurt some people in very serious ways.”

— The Rev. Mary Frances Schjonberg is an editor/reporter for the Episcopal News Service.

Comments

Clergy misconduct is serious. It effects not only the victim of this misconduct, but the parish, the diocese and the greater Church. When clergy skirt responsibility for their behavior by leaving for another diocese, the problems just multiply. Inappropriate relationships with parishioners and others who have a professional or pastoral relationship with the clergy person involved are not about human sexuality, they are about power and control. The church could learn a lot about discipline from other disciplines, such as establishing a nationwide directory of persons found guilty of abuse needs to be established and available to all dioceses. Reconciliation is only possible when there is repentance and responsibility on the part of the offender. It should not be quick and easy. To accept an apology without repentance and change of behavior is irresponsible and will continue to effect the Church.

There are definitely bad guys and gals who need to get their heads handed to them. Having said that, my own experience with Title IV has seen three clergy get essentially wiped out from their ministries, with no support for them, and equally as important no support for their families. Lives given to service of the church suddenly declared personas non grata, functionally forbidden to speak with anyone in their own defense. The financial costs have been incredible… approaching $50k in one case… and when it was clear that even if they would be cleared, if something came up again the clearing would not miitigate having to go through the financial ruin a second time… the person then said the heck with it, and walked away from the ministry. That is a travesty of both justice and the gospel. Forgiveness is nowhere within this current system, nor is grace.

Watching a mentor being subject to 12 years prohibition at the age of 68 obviates any notion of repentance forgiveness and reconciliation. There is no grace or mercy for this priest who spent his life in Mother Church. There is a persecutory aspect of this application of Title IV which, I believe, is not of God.

In my experience in witnessing the execution of the current Title IV process there have been many inconsistencies, with pastoral care given to respondents being one of the most egregious. On one hand the process is nothing but adversarial, and on the other a Diocese bends over backwards to be seen as compassionately working to restore the ministry of a priest. I realize that all circumstances are different. But there must be some level of consistency to which the process and those who execute it are held. You simply cannot expect lay or clergy who have no experience, expertise, or penchant for such serious and complicated disciplinary proceedings to truly understand the intricacies of the process and execute it fairly.

In addition, there should be a much stronger emphasis put on the fact that a clergy person is innocent until they are proven guilty, as the canon clearly states. The stigma placed upon clergy and their families by their colleagues and parishioners (due to a lack of understanding of the canons, in many cases) as they spiral through a process which seemingly has no end is unbelievably cruel and lacks consideration to the thought that the respondent may be vindicated in the end.

There are so many unanswered questions: What special provisions for pastoral care have been given to the priests stuck in the middle of such a fluid and changing process while it gets “smoothed” out? Why isn’t each Diocese required to provide a counselor experienced in crisis management AND the Title IV canons to affected parishes that are suddenly plunged into the process without warning? Who watches over the process to ensure that bishops do not intentionally or unintentionally abuse the system? I realize that each respondent has the right to their own counsel, but who in the Church protects and advocates for the “innocent” when the “innocent” is, in the end, the respondent? How does the Church reconcile itself to the respondent when it is clearly proven that the process has unreasonably and quite permanently damaged their life, ministry, and by extension their family and their flock, whether they are found guilty or not?

Our secular criminal justice system has at times made for great theatre. Whether such drama has uncovered the actual truth of wrong-doing has many times been questioned. It should be remembered that our secular court system is divided into the Grand and Petit juries. It is while Petit juries are in session that the aforementioned drama tends to take place. It has always struck me that the Grand jury process tends to be the more dispassionate of the two and perhaps that, in and of itself, should be cause for examining that model more closely as the more heated and contentious the debate becomes, the more reason has a tendency to be kicked to the curb. Perhaps a review of Judge Harold J. Rothwax’ “Guilty; The Collapse of Criminal Justice” could prove instructive.

Then there is the financial costs. In this instance the church, not supposedly being a vehicle for monetary gain, needs to review compensation practices for legal council on both sides of any given Title IV case. The lawfirm of Fulbright & Jaworski of Houston, Texas the Episcopal Church is not.

I will not argue with repentance and acceptance of responsibility on the part of the offender being necessary for reconciliation. However, I would remind all sides here that the adversarial judicial system we have was not designed to provide for reconciliation, rather it goes back more to the notion of an eye for an eye. In most cases in the secular world where reconciliation took place such occurred only after the court case was settled.

The foundation of criminal law in the US is the requirement of a level of evidence necessary to satisfy the mind of the jury “beyond a reasonable doubt” in order to convict. In addition there is a large body of law that addresses the evidence that can be presented. In reading Title IV I see little in the way of acknowledgement of these principals of justice. There is no doubt that we require a system to receive, investigate and bring to trial acquisitions made against priests and deacons. But I feel we’re getting the horse before the cart. In the haste to respond to public pressure to “do something” we’ve failed to create a system that is fair to both the victim and the accused. Reconciliation is not possible until guilt or innocence is established in a system of law that is respected by all parties.

The pace of adequately sorting out these types of entanglements has always managed to bedevil those who want a quick fix to things. It is on such occasions as this that I wonder if inventing the transistor was necessarily a good thing. Now we seem to want instant gratification in everything that we do. Too many have lost the notion of patients being a virtue.

The most egregious example of the effect of “new” Title IV Canons was the attempted lynching and assembly of a kangaroo court in Province IV to run Bishop Mark Lawrence of the Diocese of South Carolina out of the Church for disloyalty to TEC. Or course there was nary a mention of it in an ENS article.

As principal draftsman of the Title IV 1994 Revision, trying to bring 1917 disciplinary canons into the modern era, I wish to take some exception to your article’s too broad comment that the revision was a “system based on the U.S. Armed Forces code of military justice” [sic]. The 1994 Revision was an attempt to base the update primarily upon the polity and order of an apostolic church with fundamental rights for all the parties involved, including the church as institution. (At the 1994 General Convention, good work was done by Sally Johnson (MN) and others to expand SCCC’s draft more completely to the victims of misconduct.) I fondly recall the late Bp. Walter Dennis’ comment about the priest coming to the bishop’s office for lunch and finding that the priest was the lunch. Only in very, very limited instances, mainly the effect of “command authority”, with a commanding officer (bishop?) having appointing authority and a continuing effect on the officers’ (clergy?) staffing the court through subsequent fitness reports and appointments, etc. (a bishop’s recommendation for a call as rector elsewhere or finding a selected priest “qualified” as rector?) and for some very good, clear and experiential definitions, did SCC look to the UCMJ. Any system of ecclesiastical discipline will always be incomplete, weak and even dangerous when there is no subpoena power or enforceable sanctions for laity bearing false witness and perjury! For those reasons the standard of proof went from “beyond a reasonable doubt” to the lesser standard of “clear and convincing”. (Besides, as to heresy, beyond a reasonable doubt will have to await the final Reunion!) Alas, ECUSA is caught between maintaining good order and discipline and the therapy of reconciliation (think Church of Rome’s current mess). I fear that when clergy are in the tumbril and are facing loss of vocations (remember not just a “job”), livelihoods and very often families, their “rights and protections” are more immediate to them than reconciliation, whatever form it may take. Good luck SCCC!!

Perhaps the reason the comment in the ENS article referred to a “system based on the U.S. Armed Forces code of military justice” was because that is exactly what was said by one of the people on the Title IV revision committee at a mandated diocesan clergy training session which I attended a couple of years ago (and which the author of this article did not). I specifically remember the allusion to “conduct unbecoming an officer”. So much has been said on this subject I’m not sure who can keep it all straight.

One of the obvious defects of the current Title IV is that it lacks any TIME constraints. Our church has been without our rector since last August. Meanwhile each Sunday we have a diminishing congregation and I fear for the coming fund drive for next year. It is incomprehensible to me that those who drafted Title IV did not recognize the harm to the church caused by the interminable passage of time without resolution. One of the authors cited above called it a “draft”. To my knowledge, most “drafts” do not become canon law. So sad.

A disciplinary complaint is, by definition, adversarial. The new Title IV is terribly cumbersome and stories of its visiting abuse on clergy–both intentionally and unintentionally–abound. The safeguards for the accused from the 1994 version were more than adequate. The newest revision has brought no more benefits to the victims than was the case under the 1994 revision.

And that is not to mention the multiplicity of complaints against bishops that has occurred because no one can really say “no” to the complainant–and these are by and large not complaints of sexual abuse–because the Intake Officer and Panel of Reference may believe, with all good intentions, that they need to let the investigation go forward on patently absurd claims. Although the claim that this is not adversarial is given as the basis for not informing the accused or advising him or her of the progress or even interviewing the accused during the investigation, the net effect is that the process is certainly perceived as adversarial by the accused. The drafters of the new revision not have intended for these investigations to be adversarial, but if it walks like a duck and quacks like a duck . . .

I am not certain as to what constitutes an adequate amount of time for bringing another rector on board. As I recall it took close to two years between a rector that had been in the service of the church I attend for 14 years and was dismissed under allegations of inappropriate contact with minors and the most recent that has now departed to a parish in the Houston area. This time around, the Episcopal Diocese of Texas informed us that we had taken entirely too long to find a replacement rector the last time we were in search. So this time around it only took us about 60 days with the Vestry itself performing the task of search committee rather than establishing a separate entity for that purpose. I should hasten to add that, in our case due to declining attendance, the Diocese informed us they would not support a decision in regards to another full time rector and therefore we now have a Priest in Charge instead.

Any system that permits hearsay and attempts to silence respondents (or at best give them the Hobson’s choice of how to proceed) will sooner or later face lawsuits, and rightfully so. It certainly will not foster reconciliation.

I worked with a priest on a volunteer basis for nearly 10 years.. I served as clerk of the vestry for 5 years and the vestry was never approached about our rector taking another job. We learned this a few years later. At that time the Diocese of L.I. did not allow for worker priests. (I’m not sure if it still does.) This priest also has been on the budget committee for a number of years making sure of a salary increase. This priest has worn the vestry to a frazzle and is very proud of the power and its control. This priest has violated both diocesan policy and church canons and, yet, the vestry nor any parishioner has reported this priest. The church needs to educate its leaders to prevent this kind of behavior reoccurring in the future and if does reoccur, know how to respond.

Those are my objections to the new Canon IV and I speak as a member of my diocese’s ecclesiastical court. Canon IV allows for anonymous accusations and vague charges that leave clergy unable to defend themselves. Canon IV attempts to silence the accused with gag orders whose design seems to be to isolate and marginalize them. Canon IV allows bishops to issue “temporary” inhibitions that deprive clergy of the means to make a living and of the spiritual solace of administering the sacraments. And finally, beyond the appointment of an advisor, Canon IV places the burden of defending oneself entirely on the accused with no support — either financially, emotionally, or spiritually — from their diocese or ordinary. Canon IV is a stacked system and I’m ashamed to have become involved with it. My only reasons for staying are to assist its inevitable clergy victims and to work to change a major source of injustice within the church.

I am dismayed to see so little concern about the plight of complainants. We are not the enemy of the church; we raise our voices to make the church safer. Because speaking up takes such a toll on victims of clergy sexual misconduct, most of us remain silent. Many of us only report offenses when we believe that our offenders pose a risk to others in the church. We speak our painful truth to protect the church from harm.
Most of these commenters express concern about the Title IV process “ruining careers” and harming clergy in other ways. Where is the concern about the ruined lives of victims? The church is supposed to be a sanctuary. Priests (as confessors, as pastoral guides, as the hand that offers the sacraments) hold enormous trust from congregants. When a priest abuses this trust to meet his or her own needs, he or she can destroy the victim’s faith in clergy, in church, or even in God. When the church responds by protecting its own, victims are exiled from community at our greatest time of need. “Ruined careers” are the least of the wounds that we have to deal with.
I agree with Rev. Farrell: Title IV is a stacked system, but it isn’t stacked against clergy. By “encouraging early resolution of conflicts and reconciliation of the persons at the earliest appropriate time and the lowest appropriate level of the church,” Title IV fails to acknowledge the profound damage that sexual misconduct causes to its victims. By seeking a quick fix, Title IV protects the church against the hard work of justice and truth.